November 13, 2001: Coup d’etat in America

I am writing this on November 13th.That day probably has little significance for most readers of this blog. But it is a day, as they say, that should live in infamy. On that date in 2001, two months after 9/11, President Bush issued Military Order Number 1. (www.whitehouse.gov/news/releases/2001/11/20011113-27.html) I remember the shock I awoke to upon reading the military order in the newspapers of November 14th. I remember thinking to myself that there has just been a coup d’etat in America, perhaps an exaggeration, but nonetheless a watershed moment in a country that I still though had some semblance of a democracy and of the principle that Presidential authority was under law.

As most of you may not recall the order, let me remind you of its three key provisions. First,the President claimed the authority to capture, kidnap or otherwise arrest any non-citizen (it was later extended to citizens) anywhere in the world including the United States whom the President believed was involved in international terrorism and hold them forever without any charges, proceedings or trial. Amazing—a person could be held forever just because the President wanted them so held; he took on the power to disappear people.Second, the order did provide that if, and if is the crucial word here, if the person was tried (there never needed to be a trial) such trials were to be held by special ad hoc courts called military commissions. These commissions had no resemblance to regular trial courts. The entire proceeding could take place in secret, with evidence from torture, and those found guilty could be executed in secret. Third, to the extent the names of those imprisoned or tried could be determined and lawyers found, no court could hear any case.This order embodies within it the violations of fundamental rights we are facing today:indefinite detention without trial, Guantanamo, secret sites, special trials and disappearances. While it does not mention torture, that appears to have come a bit later, a secret detention system is part and parcel of a torture system.Let’s also repeat:this was a military order in a society and country that was us still or purported to be under civilian rule.

This orders more then any other single document embodies our lost liberties. It was this document that pushed the Center for Constitutional Rights into action. It was this document that made CCR begin the historic fight the rights of those who would a few months later be imprisoned at Guantánamo. We said, despite the hate and the anger that ensued, that we would represent the first detainees imprisoned under this order and we did. (http://www.law.uchicago.edu/tribunals/nyt_113001)We are still doing so today. On December 5 the latest in the Guantanamo cases will be argued in the Supreme Court. We will never give up this fight.